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Topic 5- The Courts and the Judiciary- The Judicial Power (Sentencing and…
Topic 5- The Courts and the Judiciary- The Judicial Power
Judicial v Legislative power
Buckley v AG (The Sinn Fein Funds Case
FACTS: Dispute over funds which once belong to SF in 1924
Notwithstanding the existence of this case, the Orieachtas passed the SF Funds Act 1947 which established a board to administer the funds and provided that the HC 'shall' when teh application is made, direct that monies be given to the board
Issue: Act told the HC the manner in which the funds must be dispersed
HELD: 'Unwarrantable' interference with the operation of the courts as the substantial effect of the Act was allow the dispute to be determined by the Oireachtas and not the Courts
Unusually clear-cut illustration f the distinction between legislative and judicial powers
Article 34: Justice shall be administered in courts
State (O'Rourke) v Kelly
Facts: Housing Act 1966 required a Judge of the District Court to issue a warrant for repossession if certain demands for repossession were made and an application was 'duly made'
Issue: Argued that as the requirement for the judge to issue the warrant was mandatory this amounted to a breach of the judicial power as it robbed the Judge of any discretion
HELD: SC rejected : it had 'no substance'
as the order only became mandatory after certain criteria satisfied
CONTRAST:
State (McEldowney) v Kelleher:
Facts : Power under the Stree and House to House Collections Act for chief Superintendent to refuse a street collection permit
There was a right of appeal to a judge of the District court
ISSUE: s13(4) required that the Judge 'shall' disallow the appeal if an inspector swears that he believes the money raised would be useful for an unlawful purpose
HELD: amounted to to an interference with the judicial power
it required the judge simply to act on the inspector's word irrespective of whether the Judge beleived it, or wheher there was evidence to the contrary
Kelly distinguished- judge had to be satisfed certain steps followed
Entitled to change law in response to legal cases
State (Divito) v Arklow UDC:
Facts: Applicant sought to open amusement centre
Could only be done in areas which the council designated as suitable
Issue: Refused licence by the CC on appeal
Counsel then rescinded its resolution before fresh application as made
Argued this interfered with judicial function
HELD: SC- no- at the time of resolution there was no proceedings in being
Howard v Commissioner for Public Works No.3
FACTS: P got an injunction restraining interpretive centre on the Burren
Six days later new act came in to force giving power to do it
Issue: P sought new order that D could not build interpretive centre despite the change in law
HELD: there was no reason why the Oireachtas could not change the law going forward
However, it did note that it would be a breach of the SOP if a new act sought to retrospectively validate prior actions held to be unlawful
Conclusive evidence
Maher v Attorney General
Facts: S44 Road Traffic Act 1968 provided that a certificate from the Forensive Science Lab stating that a particular blood sample contained alcohol was 'conclusive evidence' of that fact
HELD: unlawful interference with the judicial power
A key part of the judicial power is ability to weigh and assess evidence
McGonnell v AG:
FACTS: 2002 RTA inserted the following language: 'sufficient evidence until the contrary is proven'
HELD: not to amount to an interference with the judicial power as it merely created a rebttable presumption
for court to assess whether that presumption had been rebutted
NUANCED APPLICATION:
Sloane v Special Criminal Court
Facts: Offences Against the State Act 1939 allowed the government issue a 'suppression order' deeming an organisation to be unlawful
Section 20 allowed for an application to be made to HC that such an organisation not in fact unlawful
S19(4) provided that, during the course of a criminal trial, a suppression order was conclusive evidence that an organisation unlawful
HELD: the section here was not unconstitutional
Recognized the real issue for the criminal trial was whether the accused was a member of a particular organisation
not whether the organisation was lawful
Noted the availability of the procedure under s20 to contest whether the organisation was properly designated as unlawful
Oates v Brown
Facts: Drink driving charge
sought to inspect intoxilyser Machine
DC refused permission
HELD SC: entitled to inspect the machine
: Hardiman 'Maher requires that the contents of the print out must be realistically contestable, contestable in reality and not simply in some theoretical or hypothetical sense'
Sentencing and Detention
Deaton v AG
:
FACTS: power given to the Revenue Commissioners under the Customs Consolidation Act 1876 to decide the sanction which should apply for certain breaches of the Act
A choice between £100 fine or trice value of the goods
HELD: SC the degree of punishment to be imposed is an 'integral part' of the admin o justice and could not be designated to the executive
Such transfer of power 'inconceivable'
Osmanovic v DPP
: Similar case
Facts; Decision between a fixed fine and treble the value of the goods under the Finance Act 1997 was left to the Court
Held: No violation
State (C) v Minister for Justice
Facts: Judge remanded a person for examination as to sanity and during that period of remand he was certified as 'insane'
s13 of the Lunantic Asylums Act gave Minister for Justice power to order his detention in a mental hospital until recovered
Issue: Minister had power to decide when he would come back before the court
HELD: this porivison was unconstitutional as the power of choosing when a prisoner would be brought before the Court was a judicial function
It touched upon the right to liberty of the individual and the duty of the Court to vindicate same
Power of remission= Executive Function
People (DPP) v Finn
: The court disapproved of theJudge's practice of deferring the suspending of sentences as it amounted to a de facto remission which was an executive function
Enright v Ireland
Facts: Challenge to the Sex Offenders Act 2001 which provided that persons convicted of sex crimes must notify the Gardai of changes in their address and to provide certain info
It also applied to persons convicted prior to the commencement of the Act if the were released after the passage of the Act
ISSUE: Argued- This amounted to an additional punishment and therefore, where not imposed by a Court= Breach of SOP
HELD: Finlay Geoghegan J: requirement did not constitute a punishment and therefore was not objectionable
in order for a disability or restriction by statute on a convicted person to be considered part of the criminal penalty for the offence, such restriction or forfeiture must be considered to be
punitive
in intent and effect
The fact that it had a punitive or deterrent element did not of itself mean that it should be considered to be a penalty for the criminal offence
HELD: Requirements not punitive in nature: represented a proportionate response by the Oireachas to the need to protect the community from persons convicted of serious sexual crime
Whelan and Lycnh v Minister for Justice
Facts: Constitutional Challenge to mandatory life sentence for murder
ISSUE: Argued by giving no discretion to the judge amounted to an unlawful interference with the judicial function
HELD: SC- rejected
Relationship between the penalty and the offence
Court indicated that a fixed penalty with no rational relationship to the gravity of the case would not be immune from challenge
Gilligan v Ireland
Facts: Challenge to s13 of the Criminal Law Act 1976 - provided for mandatory consecutive sentence where the offence was committed in prison
HELD: SC: Oireachtas was entitled to prescribe rules in relation to sentencing process
Ultimate decision as to appropriate sentence remaiined with court
RULE INTENDED TO ADVANCE A RATIONAL, LOGICAL an LEGITIMATE GOAL= mark the gravity of a situaiton where a prisoner, while serving a term of imprisonment, commits another offence
Ellis v Minister for Justice: Must be a rational relationship between fixed penalty and requirements of justice
PC v Minister for Justice:
Facts: Constitutional challenge to s249(1) of the Social Welfare (Consolidation) Act 2005
provided that a person would not be entitled to social welfare entitlements while in custody
ISSUE: Applicant had been in receipt of state pension but this ceased when he received a custodial sentence
happened automatically and was not an additional punishment imposed by trial court
HELD: Such amounted to an additional punishment in respect of the offence and was unconstitutional as it was a punishment imposed by the operation of statute rather than by the Courts
remedy reserved for further argument